In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)

Facts

Under the Offences Against the Person Act 1861 and the Criminal Justice Act (Northern Ireland) 1945, abortion in Northern Ireland was a criminal offence save where necessary to preserve the life of the woman or to prevent real and serious long-term damage to her physical or mental health. The Commission brought judicial review proceedings in its own name, not on behalf of any identified woman, seeking declarations that the law was incompatible with Articles 3, 8 and 14 of the Convention in so far as it prohibited abortion in cases of serious or fatal foetal abnormality and pregnancies resulting from rape or incest.

History

The High Court in Northern Ireland made a declaration of incompatibility in respect of fatal foetal abnormality and pregnancies resulting from sexual crime. The Court of Appeal in Northern Ireland allowed the appeal, considering that the matter should be left to the Northern Ireland Assembly. The Commission appealed to the Supreme Court.

Issue

(1) Whether the Commission had standing under the Northern Ireland Act 1998 to bring proceedings challenging the compatibility of the law with the Convention without identifying an actual or potential victim of an unlawful act. (2) Whether the law prohibiting abortion in cases of fatal foetal abnormality, rape and incest was incompatible with the Convention.

Held

Appeal dismissed because the Commission lacked standing; no declaration of incompatibility was made. A majority nonetheless stated that the law was incompatible with Article 8 in cases of fatal foetal abnormality, and a narrower majority that it was incompatible also in cases of rape and incest.

Ratio

• Under the Northern Ireland Act 1998, the Commission may bring proceedings relying on Convention rights only in relation to an actual or proposed unlawful act affecting one or more actual or potential victims; it has no power to bring abstract proceedings challenging the compatibility of legislation, and so lacked standing in this case.

The judgments

Key reasoning

• The majority on standing read the provisions of the 1998 Act, as amended, governing the Commission's power to bring proceedings as requiring an identified actual or proposed unlawful act and an actual or potential victim of it.
• On the merits, the majority accepted that the protection of the unborn and of moral views is a legitimate aim, but held that requiring women to carry to term a foetus with a fatal abnormality, or a pregnancy resulting from rape or incest, imposed a disproportionate burden on their right to respect for private life.

Obiter

• The views of the majority on incompatibility were obiter, given the finding on standing, but were expressed so that the legislature could consider them; they were widely understood as a signal that a properly constituted challenge by an affected woman would succeed.

Where it fits in the module

On the list for the devolution statutes, the case raises questions about the relationship between the courts, devolved legislatures and Westminster: the institutional deference owed to a devolved assembly on contested moral questions, the use of the Human Rights Act to signal incompatibility, and Westminster's continuing power to legislate on devolved matters when the devolved institutions are not functioning. It also illustrates the statutory design of human rights bodies created by devolution legislation.

Criticisms

• The court's willingness to express a detailed view on incompatibility while holding that it had no jurisdiction to decide the question invites the charge of judicial overreach, issuing what amounts to an advisory opinion.
• Conversely, the strict view of the Commission's standing frustrates the purpose of a statutory human rights body, forcing vulnerable women to litigate their own cases at a time of great distress.
• The split between the standing majority and the merits majority produced no binding ruling on the central question, leaving the law in an uncertain state until Parliament intervened.